[Cite as Buckingham v. Buckingham, 2014-Ohio-5798.]

 IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO 

JAY A. BUCKINGHAM : 

Plaintiff-Appellant : C.A. CASE NO. 2013 CA 77 

v. : T.C. NO. 13DR153 

NANCY J. BUCKINGHAM : (Civil appeal from Common 

 Pleas Court, Domestic Relations) 

Defendant-Appellee : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 30th day of December , 2014. 

 . . . . . . . . . . 

KENT J. DePOORTER, Atty. Reg. No. 0058487, 7501 Paragon Road, Lower Level, 

Dayton, Ohio 45459 

Attorney for Plaintiff-Appellant 

F. ANN CROSSMAN, Atty. Reg. No. 0043525 and MICHELLE M. MACIOROWSKI, 

Atty. Reg. No. 0067692, 7051 Clyo Road, Centerville, Ohio 45459 

 Attorneys for Defendant-Appellee 

 . . . . . . . . . . 
2

FROELICH, P.J. 

{¶ 1} Jay A. Buckingham appeals from a Final Judgment and Decree of 

Divorce entered by the Greene County Court of Common Pleas, Domestic Relations 

Division. The judgment and decree were based upon an agreement read into the record by 

the parties; the court adopted an entry drafted by Nancy J. Buckingham’s attorney. Mr. 

Buckingham disputes some of the terms contained in this agreement and the court’s decision 

not to adopt his proposed entry. 

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed. 

{¶ 3} Following 17 years of marriage, Mr. Buckingham filed a complaint for 

divorce in June 2011, and Mrs. Buckingham filed a counterclaim for divorce; there were no 

children of the marriage. The parties agreed to use June 30, 2011, as the date of separation. 

 The court entered temporary orders with respect to the parties’ ongoing expenses and 

spousal support (payable to Mrs. Buckingham). In April 2013, the parties filed a 

hand-written agreed entry which stated that the case would be dismissed without prejudice 

and that it would be continued upon the filing of a new complaint, answer, and counterclaim. 

{¶ 4} The second complaint was filed in June 2013 and, by agreement of the 

parties, their prior arrangement with respect to temporary spousal support remained in effect. 

 The parties also filed an agreed entry in June 2013, which reflected the issues that the 

parties had agreed upon up to that point. Hearings were held on April 22, April 23, and July 

22, 2013, at which the parties read their agreements as to property division and spousal 

support into the record. 

{¶ 5} After the final hearing, Mrs. Buckingham’s attorney was ordered to prepare 
3

a decree of divorce and other documents to effectuate the parties’ agreement; she filed these 

documents on October 8, 2013. After a telephone conference with the court, it became 

apparent that there were some points of disagreement as to the content of the proposed 

agreement. Mr. Buckingham was given two weeks to submit his own version of the parties’ 

agreement, which he did on October 25, 2013. On November 25, 2013, the trial court 

adopted Mrs. Buckingham’s proposed Final Judgment and Decree of Divorce. 

{¶ 6} Mr. Buckingham appeals, raising two assignments of error. 

{¶ 7} In his first assignment of error, Mr. Buckingham contends that the 

agreement adopted by the trial court did not reflect the parties’ agreement in three respects: 

the deductibility of spousal support; the source of the funds from which he could pay for the 

division of marital assets; and the amount Mrs. Buckingham was permitted to retain from 

certain financial accounts. 

Tax Consequences of Spousal Support Payments 

{¶ 8} In August 2011, the trial court established Mr. Buckingham’s temporary 

spousal support payment to Mrs. Buckingham. Its order stated, in pertinent part: “Plaintiff 

[Mr. Buckingham] shall pay for temporary nontaxable spousal support to the Defendant 

[Mrs. Buckingham] the amount of $5000.00 per mont[h] beginning October 1, 2011. * * *” 

(Emphasis sic.) When the parties filed an agreed entry with the court in June 2013, which 

was intended to reflect their areas of agreement from the prior case, it stated: “The 

Temporary Order of Spousal Support effective August 1, 2011 in the amount of $5,000.00 

per month shall remain in full force and effect through the filing of the new case.” The June 

2013 agreed entry further stated that Mr. Buckingham would receive credit for the length of 
4

time he had paid spousal support under the temporary order when the court ultimately 

resolved this issue. 

{¶ 9} Pursuant to their final agreement, Mr. Buckingham was to pay spousal 

support in the amount of $9,500 per month for a period of six years. Due to the parties’ 

prior agreement, Mr. Buckingham was entitled to credit for the length and amount of spousal 

support he had already paid under the temporary order. Although Mr. Buckingham was 

current on his support obligation of $5,000 per month under the temporary order, the final 

order created an arrearage of $117,000 (the difference between the temporary $5,000/month 

and the new $9,500/month orders); Mr. Buckingham agreed to make a lump sum payment of 

$40,000 and to pay the balance over two years. Mr. Buckingham expressed his agreement 

to these terms at the April 23, 2013 hearing, without any discussion of the deductibility or 

tax consequences of the arrearage payments or of any change to the “nontaxable” nature of 

the temporary support orders. 

{¶ 10} At the July 22, 2013, final hearing, Mr. Buckingham’s attorney stated that, 

with respect to spousal support, all money paid “will be deductible from Mr. Buckingham’s 

income and taxable to Mrs. Buckingham.” Similarly, the final judgment stated: “The 

parties further agree that the spousal support shall be included as income to the Defendant 

[Mrs. Buckingham] and shall be tax deductible to the Plaintiff [Mr. Buckingham]. The 

parties agree that the arrearage of $117,000.00 on the spousal support is taxable.” 

{¶ 11} We begin our discussion of this issue with some clarification of our 

understanding of what the record reflects regarding the tax status of the spousal support 

payments through the course of these proceedings. The parties’ and court’s statements that 
5

spousal support was “taxable,” made at several different junctures, are ambiguous; such 

statements do not make clear to whom the funds are taxable. Based on the parties’ 

arguments and the “nontaxable”/“taxable” designations in the trial court’s entries, as well as 

the fact that the inclusion of the “nontaxable” designation in the temporary order is 

surplusage unless it relates to the recipient (Mrs. Buckingham), we conclude that the spousal 

support was not treated as income to Mrs. Buckingham under the temporary spousal support 

order, but that it was treated as income under the final order. In other words, the tax 

treatment regarding the arrearage and support going forward was favorable to Mr. 

Buckingham under the final order, but was favorable to Mrs. Buckingham under the 

temporary order. 

{¶ 12} In his brief on appeal, Mr. Buckingham seems to contend that none of the 

spousal support payments (temporary or otherwise) should have been taxable to him. At oral 

argument, however, Mr. Buckingham asserted that the dispute over the taxability of spousal 

support centered on the treatment of the support payments made from January through July 

2013. 

{¶ 13} . Mr. Buckingham’s assertion at oral argument that his spousal support 

argument on appeal relates only to a 7-month period cannot be reconciled with the argument 

in his brief, nor can it be viewed as a reasonable extension of that argument. To allow an 

appellant to raise a new argument in this manner would be unfair to the appellee, who had no 

notice of this argument and no opportunity to prepare a thorough response. Just as a party 

is not permitted to raise new arguments in a reply brief, we cannot consider the presentation 

of a novel argument at oral argument. See Ameritech Publishing, Inc. v. Griffin, 2d Dist. 
6

Clark No. 2009 CA 18, 2009-Ohio-5602, ¶ 13, citing Hoskins v. Simones, 173 Ohio 

App.3d 186, 2007-Ohio-4084, 877 N.E.2d 1008, 1015 (2d Dist.2007); Durham v. Pike Cty. 

Joint Vocational School, 150 Ohio App.3d 148, 2002-Ohio-6300, 779 N.E.2d 1051, ¶ 12 

(4th Dist.); State v. Hubbard, 10th Dist. Franklin No. 03AP-286, 2004-Ohio-553, fn. 2; 

App.R. 16(C). 

{¶ 14} Regardless, having reviewed the record of the case with this new argument 

in mind, we have found no support for Mr. Buckingham’s assertion at oral argument that 

there was a distinct agreement for the period encompassing January through July, 2013, or 

that the parties agreed to alter the tax treatment of the temporary spousal support as of 

January 2013. 

{¶ 15} Mr. Buckingham argues in his brief that the spousal support payments 

should have been treated as income to Mrs. Buckingham (and therefore taxable to her and 

deductible by him) throughout the divorce proceedings. 

{¶ 16} Under the court’s temporary support order, Mrs. Buckingham did not treat 

the support payments as income and therefore did not pay taxes on them; thus, Mr. 

Buckingham treated the amount he paid as spousal support as his income for tax purposes. 

Although the temporary support order was not an agreed order (i.e., Mr. Buckingham did not 

consent to the “nontaxable” nature of the temporary spousal support payments), he did 

consent to the continuation of this order in the agreed entry dated June 3, 2013. Moreover, 

at no point did Mr. Buckingham challenge the court’s tax treatment of the temporary 

payments or ask the court to revisit this issue. Under these circumstances, the trial court did 

not err in failing to modify the tax consequences of the temporary support payments when it 
7

addressed the treatment of prospective spousal support payments and those attributable to 

the newly-created arrearage, at the time of the final judgment. The trial court reasonably 

concluded that the temporary spousal support payments were taxable to Mr. Buckingham 

and that the spousal support payments remaining to be paid at the time of the divorce and the 

arrearage created by the final award were taxable to Mrs. Buckingham. 

Source of Funds from which Property Settlement Would Be Paid

{¶ 17} Second, Mr. Buckingham contends that the terms of the property settlement 

upon which the parties had agreed called for him to pay Mrs. Buckingham $1.2 million from 

qualified or non-qualified sources, but that the final entry “limited [him] to the use of cash or 

qualified funds from retirement accounts” for the payment of this obligation. 

{¶ 18} After a careful review of the final judgment and decree of divorce, we find 

no language imposing any such restriction. In fact, the only reference to qualified or 

unqualified funds in the section related to the property settlement states that Mr. 

Buckingham’s attorney “shall prepare the necessary orders in the event that qualified funds 

from retirement accounts are used.” (Emphasis added.) This language does not require or 

prohibit the use of any particular type of funds for the payment of the property settlement 

and even implicitly approves the usage of qualified funds. 

Financial Accounts 

{¶ 19} Third, Mr. Buckingham asserts that he was entitled to some funds that were 

contained in financial accounts awarded to Mrs. Buckingham. He claims that, by agreement 

of the parties, he “was to retain as his sole property all assets, as of June 30, 2011, the date of 

the separation of the parties, other than” those assets specified to go to Mrs. Buckingham. 
8

On this basis, he contends that he was entitled to the balance in certain financial accounts “in 

the names of either party as of June 30, 2011.” The trial court’s final judgment and decree 

of divorce states that “each party shall retain their individual checking and savings accounts 

presently in their individual names. The Division of the various investment accounts has 

been taken into consideration in the Property Settlement paragraph set forth herein.” 

{¶ 20} Mrs. Buckingham’s response to this argument assumes that Mr. 

Buckingham is disputing how the appreciation on the financial accounts in Mrs. 

Buckingham’s name should be distributed. Rather, it appears to this court that Mr. 

Buckingham is claiming a right to the entire amount of each account as of June 30, 2011, the 

date of the parties’ separation, i.e., that, if anything, Mrs. Buckingham is only entitled to the 

appreciation after that date. 

{¶ 21} Mr. Buckingham’s argument relies on a statement by his attorney at the 

beginning of the July 22, 2013, hearing, wherein he lists several items or amounts to which 

Mrs. Buckingham is entitled under the agreement (not including the accounts in her name), 

then states: “The husband is to retain all other assets and liabilities, except for what was 

previously read today and what was previously personal property that was read into the 

record * * *.” Mr. Buckingham advocates for an expansive reading of this statement, such 

that even amounts in financial accounts under Mrs. Buckingham’s name were awarded to 

him. However, such an interpretation is not the only reasonable interpretation, given the 

entire context of the hearings and negotiations. For example, at another part of the July 

hearing, after Mr. Buckingham’s counsel’s statement about who shall be entitled to which 

assets, Mrs. Buckingham’s attorney states that “[e]ach party will retain their own checking 
9

and savings accounts,” and Mr. Buckingham’s attorney appears to agree. Mr. Buckingham 

himself also states at the end of the hearing (after the statement about the parties’ retaining 

their own accounts) that he agreed with everything that had been read into the record. 

{¶ 22} The inconsistency of these statements created some ambiguity about the 

parties’ intentions with respect to these accounts. Because the statement related to the 

financial accounts is more specific than the general, “catch-all” statement upon which Mr. 

Buckingham’s argument relies, we cannot conclude that the trial court abused its discretion 

in concluding that the agreed entry submitted by Mrs. Buckingham accurately reflected the 

parties’ agreement and that the parties intended to keep the accounts in their own names. 

Moreover, insofar as the parties’ retention of their own accounts, according to the final 

judgment, was factored into the property settlement, any adjustment to the distribution of 

these accounts would necessitate a corresponding adjustment of the property settlement. 

{¶ 23} The first assignment of error is overruled. 

{¶ 24} In his second assignment of error, Mr. Buckingham asserts that the decree 

approved by the trial court was against the manifest weight of the evidence, because it 

“chang[ed]” the terms of the parties’ agreement. He relies on the same arguments set forth 

under the first assignment of error. 

{¶ 25} The manifest weight of the evidence analysis rests on the strong presumption 

that the trial court, as the trier of fact, is in the best position to weigh the evidence presented, 

to assess the credibility of the witnesses, and to make an informed factual determination 

therefrom. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). 

{¶ 26} Where, as here, the parties have read an agreement into the record, the 
10

enforcement of an agreed entry presented by one of the parties or the determination which of 

two competing entries more accurately reflects the parties’ agreement, does not require the 

trial court to weigh evidence or to assess the credibility of witnesses. Rather, the court 

reviews the record of the parties’ agreement and determines which entry best reflects that 

agreement. 

{¶ 27} We interpret Mr. Buckingham’s weight of the evidence argument as 

challenging the trial court’s conclusion that Mrs. Buckingham’s entry accurately reflected 

the parties’ agreement. Having thoroughly reviewed the record and the specific issues 

raised in Mr. Buckingham’s first assignment of error, we conclude that the trial court did not 

abuse its discretion in finding that Mrs. Buckingham’s agreement reflected the parties’ 

agreement, as stated in open court. 

{¶ 28} The second assignment of error is overruled. 

{¶ 29} The final judgment and decree of divorce will be affirmed. 

 . . . . . . . . . . 

DONOVAN, J. and WELBAUM, J., concur. 

Copies mailed to: 

Kent J. DePoorter 

F. Ann Crossman 

Michelle M. Maciorowski 

Hon. Steven L. Hurley